Mark Walsh is a contributing writer to Education Week. He has covered legal issues in education for more than two decades. He writes about school-related cases in the U.S. Supreme Court and in lower courts.

Supreme Court Preview: Forest Grove School District v. T.A.

When the U.S. Supreme Court hears arguments in an important special education case on April 28, all eyes will be on Justice Anthony M. Kennedy.

The question in Forest Grove School District v. T.A. (Case No. 08-305) is whether parents in a special education dispute with a school district may be reimbursed for “unilaterally” placing their child in a private school when that child has never received special education services from the district.

Justice Kennedy is participating in the new case. So if the other justices hold to their votes in the New York City case, the outcome will be up to Kennedy. (Note that the court doesn't reveal how each justices voted in such circumstances, so we don't know which four voted for the school district and which four for the family.)

The new case is from the 6,000-student Forest Grove district in Oregon. The district is appealing a ruling in favor of parents who sent their son to a private school for children with behavioral and emotional problems some two years after a district evaluation had determined that the boy was ineligible for special education.

The district eventually determined that the student had attention deficit hyperactivity disorder, but that it wasn’t affecting his educational progress. The parents appealed to a hearing officer, who ruled they should be reimbursed for enrolling their son in a residential program with tuition of more than $5,000 a month. A federal district court reversed the hearing officer, but a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, held in a ruling last year that the parents were entitled to reimbursement.

The IDEA says tuition reimbursements for such unilateral private school placements are available only to students “who previously received special education and related services.” The appeals court held that the language, added in the 1997 reauthorization of the IDEA, did not “create a categorical bar to recovery of private school reimbursement for all other students.”

In its merits brief before the Supreme Court, the Forest Grove school district says the 9th Circuit got that fundamental issue wrong.

"As amended in 1997, IDEA unambiguously imposes a categorical bar on tuition reimbursement for parents who unilaterally place a child in private school, when the child did not previously receive special education services from the public school district," Forest Grove's brief says.

But lawyers for T.A. and his parents say in their brief that the 1997 amendment to the IDEA did not alter the law's "central entitlement of a 'free appropriate public education' to all children with disabilities."

The family is backed by the Obama administration, which filed a friend-of-the-court brief stating that, "When a child with a disability has been denied a free appropriate public education, IDEA authorizes an award of private-school tuition reimbursement regardless of whether the child previously received public special education."

The U.S. brief says the school district's view would produce perverse results, including that tuition reimbursement could "never be available to parents if a school district wrongly refuses to identify their child as having a covered disability."

One difference between the Forest Grove case and the New York City case bears mentioning. In the New York City case, the student was the son of a prominent, wealthy media executive and had never even attended New York City public schools before his father sought reimbursement from the public system for an expensive private school placement. This raised questions about whether some wealthy parents were gaming the system in the nation's largest school district, although the parent involved denied any such thing.

In the Forest Grove case, the student was enrolled in the public school system for most of his educational career. Only after a dispute over whether the boy was eligible for special education did his parents enroll him in private school and seek public reimbursement. The less extreme facts could make it that much easier for the court to rule for the parents, in my view.

When the New York City case was argued in October 2007, I came away from the session thinking that the court would probably rule for the school system. I said as much in this Education Week story at the time, although I couched my prediction in reserved language, such as that the justices "appeared sympathetic" to the district's arguments.

As it turns out, of course, I misread the arguments by at least one vote, and the court deadlocked 4-4. We'll see on April 28 whether the court, particularly Justice Kennedy, is easy to read on the outcome of this case.

1 Comment

As before, this ruling will greatly affect the education of thousands of children, especially here in New York City. Some Committees on Special Education, notably with schools on the Upper East and West Side of Manhattan, exist solely to fight impartial hearings brought by parents whose children were too precious to attend their local (great!) public schools. The school districts are too overwhelmed to effectively litigate the cases and lose them as a result of technicalities. Taxpayers lose millions of dollars when they fund private education for kids whose weaknesses are a result of being a predictably imperfect human being. Local public school offer the same curricula to kids with bona fide delays in an environment that does not remove the kids and needlessly stigmatize them - or imbue a sense of helplessness into the kids as if they are unable to go to a "regular" school. Also, a cottage industry of "professionals" - psychologists diagnosing LD NOS, occupational therapists diagnosing sensory processing disorder - receive reimbursement at impartial hearings when they claim to have laid hands on the child to determine what no one else can see. We hope that the Supreme Court will end this unethical practice and place the burden of proof back onto parents.